27 N.J. Eq. 146 | New York Court of Chancery | 1876
The -bill, as originally framed, presented an ordinary fore■closure case. It prayed a decree for the sale of certain mortgaged premises in satisfaction of a mortgage made by Christopher Wiedenmayer and Johanna Laible, to the complainants, for the sum of $65,000. The mortgaged premises were the property of John Laible the first, at the time of his -death in August, 1862, and were conveyed by his executors to Wiedenmayer just before the execution of the mortgage in suit. Answers were filed by certain of his children, denying the power of the executors to convey, and also alleging that the conveyance to Wiedenmayer was not made to carry out an actual sale, but was a mere artifice to enable him to execute the mortgage to the complainants. The complainants thereupon amended their bill, substantially alleging that the testator, at the time of his death, was engaged in the brewery business; that his executors, pursuant- to the directions of his will, continued his business after his death • that the debt secured by their mortgage was contracted by the executors in the purchase of necessary brewers’ materials used in the business; that the business, under the management of the executors, was
Two demurrers have been filed, one by Maria A. Laible, the widow and sole legatee of the testator’s deceased son John, insisting that the amendments contain no equity; and the other by the testator’s widow, alleging that the bill, as amended, is multifarious.
In support of the objection of want ‘of equity, it is said that where a testator directs his executors to continue his business after his death, and they contract debts in its prosecution, the primary remedy of creditors is against the executors-personally, and they have no remedy against the assets until the personal remedy is exhausted, unless insolvency is alleged. This view seems to have the support of the judgment of Vice-Chancellor Bacon, in Owen v. Delamere, 15 Eq. Cas. 139, and he cites the judgment of Lord Eldon in Ex parte Garland, 10 Vesey 120, as his authority. Lord Eldon’s opinion, as I read it, gives no support to this view, but so far as he lays down any rule on the subject of the order of liability, declares the fund or property embarked in trade primarily answerable.. He says: “ Creditors whose debts have been contracted after the death of the testator, have the whole fund that is embarked in
The position of an executor continuing the testator’s business pursuant to his will, is a hard one at best. If the business is prosperous, he can derive no benefit from it; if it proves disastrous, he is personally liable for all loss beyond the value
The other demurrer imputes two faults to the bill as amended: First, that it seeks to prosecute, in the same action, two distinct causes of action; and second, that it brings before the court, as defendants, certain persons who have no interest whatever in the controversy, so far as it relates to the question whether the complainants can or cannot charge the general estate of the testator with their debt.
No general rule defining what causes of action may be properly joined and what cannot, can be laid down. The question is always one of convenience in conducting a suit, and not of principle, and is addressed to the sound discretion of the court. Emans v. Emans, 1 McCarter 118; Campbell v. Mackay, 1 M. & C. 618; 1 Daniell’s Ch. Pr. 334, note 2; Story’s Eq. Pl., § 284. If it appears that the causes of action or claims are so dissimilar or distinct in their nature that they cannot be heard and determined together, but must be heard piecemeal — first one and then the other — a clear case of fatal misjoinder is presented; but where a complainant has two-good causes of action, each furnishing the foundation of a separate suit, one the natural outgrowth of the other, or growing out of the same -subject matter, where all the defendants have some interest in every question raised on the record,, and the suit has a single object, they may be properly joined,, and the objection of multifariousness or misjoinder will not be sustained. Story’s Eq. Pl., § 284; Durling v. Hammar, 5 C. E. Green 227; Campbell v. Mackay, supra.
In Harrison v. Stewart, 3 C. E. Green 451, on a bill against husband and wife to foreclose a mortgage, made during coverture by the wife alone, and therefore void,, a.
Separate causes of action, growing out of the same transaction, against the same defendants, were joined by order of the court in the same bill, in Wilson v. Brown, 2 Beas. 277.
And in Armstrong v. Ross, 5 C. E. Green 121, on a bill to foreclose a mortgage given for the purchase money of land conveyed to a married woman, but void as a deed, because not acknowledged so as to pass her estate, the complainant was permitted, at the hearing, to add to his cause of action on his mortgage, his right to a vendor’s lien, the defect of the bill being characterized by the chancellor as merely formal.
These cases sufficiently illustrate, I think, what causes of action may be properly united in the same suit. They cover precisely the case under consideration. It must be admitted the demurrer ought not to be sustained, if, on final hearing, the court would permit the cause of action now objected to, to be added. Although two separate causes of action are set forth in the bill, its purpose is single, viz., the enforcement of a debt, either as a mortgage debt or as a charge upon, the assets embarked in the business. Each of the defendants has some interest in all the questions raised on the record, whether they flow from the one cause of action or the other. They are all interested in the brewery premises, and are, therefore, necessary parties to a suit founded on either cause of action, for these premises constitute a part of the property answerable for the debt, whether it is enforced as a mortgage debt or as a charge in equity. Some of the defendants have no interest in so much of the trade property as consists of personalty, but their interest in the brewery premises, and in those portions of the testator’s other lands which, it is alleged, have been greatly increased in value by the improvements made thereon
■ ' Neither objection is well taken. Both demurrers must be overruled, with costs.